State, ex rel. Walker v. Green

• Decision Date: 02 December 1887
• Docket Number: 12,908
• Citation: 14 N.E. 352,112 Ind. 462
• Parties: The State, ex rel. Walker, Prosecuting Attorney, v. Green
• Court: Indiana Supreme Court

14 N.E. 352

112 Ind. 462

The State, ex rel. Walker, Prosecuting Attorney, v. Green

No. 12,908

Supreme Court of Indiana

December 2, 1887

From the Benton Circuit Court.

The judgment is affirmed.

L. T Michener, Attorney General, M. H. Walker, Prosecuting Attorney, E. P. Hammond and J. H. Gillett, for appellant.

D Fraser, for appellee.

OPINION

Howk, J.

This is an information in the name of the State, on the relation of Matthew H. Walker, Esq., prosecuting attorney of the 30th judicial circuit, against the appellee, Nellie E. Green, as defendant. Appellee's demurrer to the information was sustained by the court below, and to this ruling the State excepted, and, failing to amend or plead further, it was adjudged by the court that the State take nothing by its suit herein.

From this judgment the State has appealed to this court, and has here assigned as error the sustaining of appellee's demurrer to the information filed herein.

In this information, it was alleged that, on the 15th day of August, 1885, defendant, Nellie E. Green, being desirous to obtain license from the clerk of the Benton Circuit Court to practice medicine, surgery and obstetrics in this State, filed with such clerk an affidavit stating therein that she had resided and practiced medicine, surgery and obstetrics in this State continuously for three years immediately preceding the date of the taking effect of an act of the General Assembly of this State, approved April 11th 1885, at localities in this State, giving the date and length of time in each of such localities; and that, prior to the date of the taking effect of the aforesaid act, she had attended one full course of lectures at the College of Physicians and Surgeons in Keokuk, Iowa, the same being a reputable medical college. It was further alleged in such information, that, at the time the defendant filed such affidavit, she also filed with such clerk the affidavit of two other persons, to the effect that they were householders or freeholders of Benton county, and were acquainted with defendant, Nellie E. Green; and that they were informed and had reason to believe that she had practiced medicine, surgery and obstetrics, and had attended a course of lectures at a medical college substantially as she had stated such facts in her own affidavit filed with such clerk. These two affidavits are set out at length in the information, and it is then alleged therein that upon the filing of such affidavits, and on the same day, the clerk of the court below issued to the defendant, Nellie E. Green, a certificate showing that she had complied with the laws of this State relating to the practice of medicine, surgery and obstetrics, and thereby authorizing her to practice medicine, surgery and obstetrics in Benton county, setting out a copy of such certificate and license.

And the relator further averred, that the certificate and license issued as aforesaid by such clerk to the defendant, Nellie E. Green, were procured by her fraud, in this: That the matters and things set forth in the aforesaid affidavits were wholly false, and were known to be false by the defendant at the time she filed such affidavits; that defendant had not, for three years immediately preceding the taking effect of said act, approved April 11th, 1885, continuously practiced medicine, surgery and obstetrics at the place or places stated in such affidavits, nor at any other place or places in this State, and that she never attended one full, or partial, course of lectures at the above named medical college, or at any other reputable medical college. Wherefore the relator prayed that the certificate and license, issued as aforesaid by such clerk to the defendant, Nellie E. Green, be annulled, vacated, set aside and declared void, and that such defendant be perpetually enjoined from practicing medicine, surgery or obstetrics, under or by virtue of such certificate and license, and for other proper relief.

In her demurrer, defendant, Nellie E. Green, assigned the following grounds of objection to the information, namely:

1. The information does not state facts sufficient to constitute a cause of action.

2. The Benton Circuit Court had no jurisdiction of the subject-matter of this action.

3. The Benton Circuit Court had no jurisdiction of the person of defendant.

4. The State had no capacity to sue in this action.

5. The State's relator had no capacity to sue in this action.

The act referred to in the information herein is entitled "An act regulating the practice of medicine, surgery and obstetrics, providing for the issuing of licenses to practice, defining certain misdemeanors, and providing penalties," approved April 11th, 1885. Acts of 1885, p. 197 et seq. Section 1 of this act declares that it shall be unlawful for any person to practice medicine, surgery or obstetrics in this State, without first obtaining a license so to do, as provided in such act. Section 2 of such act, so far as applicable to the case at bar, provides as follows: "Any person desiring to practice medicine, surgery or obstetrics in this State, shall procure from the clerk of the circuit court of the county wherein he or she desires to practice a license so to do, which license shall be issued to such person only when he or she * * * shall file with such clerk his or her affidavit, and the affidavit of two reputable freeholders or householders of the county, stating that he or she has resided and practiced medicine, surgery and obstetrics in this State continuously for three years immediately preceding the date of the taking effect of this act, stating particularly the locality or localities in which he or she practiced during said period, and the date and length of time in each locality, and that he or she had, prior to said date, attended one full course of lectures in some reputable medical college." Section 3 of such act provides that any clerk who shall issue such a license to any person who had not complied with the requirements of section 2 of the act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined, etc., and then declares that "such license, or one procured by any false affidavit, shall be deemed and held to be void." Section 4 of the act makes it a misdemeanor, punishable by fine, etc., for any person to practice medicine, surgery or obstetrics in this State without having first procured from the clerk of the circuit court of the county wherein he or she shall so practice a license as provided in such act: "Provided, That this act shall not be deemed to prohibit women from practicing obstetrics, and such midwives are hereby expressly exempted from its provisions." Section 5 of such act provides that no cause of action shall lie in favor of any person for his services as physician, surgeon or obstetrician who had not, prior to the rendition of such services, procured a license to practice as provided in such act, and any person who had paid money, or delivered property, for any such services, to any person not so licensed, may recover the same or the value thereof in any court of competent jurisdiction. The 7th and last section of such act simply prescribes the form of the license to be issued by the proper clerk.

In this court appellee's learned counsel has vigorously assailed in argument the sufficiency of the relator's information herein, upon two grounds, as follows:

1. Because the above entitled act of April 11th, 1885, is unconstitutional, in that "it creates privileges and makes discriminations unwarranted by the Constitution."

2. The case stated in the information is not one in which, under the law of this State, an information in the nature of a quo warranto will lie, or which the prosecuting attorney is authorized to bring and maintain in the name of the State of Indiana upon his own relation.

These two grounds we will consider and pass upon in the order of their statement, merely premising that if either one of them is found to be well taken the information must be held to be insufficient and the judgment below must be affirmed.

1. Is the above entitled act of April 11th, 1885, unconstitutional? Is such act in conflict with or repugnant to any provision of our organic or fundamental laws, State or Federal? In considering this question it must be borne in mind, of course, that the power and authority of the General Assembly of this State, in the enactment of laws, is supreme and sovereign, and is free from any limitations or restrictions thereon, except such as are imposed by the State Constitution or the Federal Constitution, and the laws and treaties thereunder.

In the recent case of Eastman v. State, 109 Ind. 278, 10 N.E. 97, in considering the question of the constitutionality of the aforesaid act, it was held by this court that the Legislature has power to regulate the practice of medicine and surgery by requiring a license therefor, and to prescribe the qualifications of applicants for such license, and that such act was a constitutional and valid law. The case cited was approved and followed in the later case of Orr v. Meek, 111 Ind. 40, 11 N.E. 787.

It is not claimed by appellee's counsel, as we understand his argument, that the General Assembly of this State may not, as a proper exercise of the police power of the State, regulate and license the practice of medicine and surgery, and prescribe the qualifications of applicants for license, by the enactment of a constitutional and valid statute. Counsel says: "I do not wish to be understood as attacking the validity of the entire act; if there are provisions that will withstand the constitutional test of equal rights, equal privileges, and equal concessions, they do not come within the purview of this discussion."

The...